By Simon Ortuanya
AN apologia is a defence. It is not an apology- a remorseful thought after the act, a regretful state of mind for acts wrongly done or perceived to have been done thus compelling a statement as in ‘‘ I am sorry’’. No, not at all. An apologia is a firm, strong and unwavering defence of a position based on conviction. In an apologia, the arguments are laid out in defence of one’s position.
I offer myself to hold this brief for the Supreme Court of Nigeria and for the learned Justices of the Supreme Court that adorn the chambers. But first, some clarification. I am aware that as a lawyer, I needn’t hold any person’s brief unless I am properly briefed (read paid). But this defence is being offered ‘‘ex gratia’’ , that is to say unsolicited and without being paid. The barrage of criticisms and missiles being hauled at the respected Justices of the Supreme Court since the recent judgment of governorship election petitions especially that of Rivers State and Akwa Ibom State compels this apologia. This has, indeed, become imperative especially as those who ought to know better have thrown caution to the winds and descended heavily on Justices of the Supreme Court. A sample: Prof. Itsay Sagay ,a cerebral academic, sometimes human right activist and member of inner bar as Senior Advocate of Nigeria (SAN) described the judgment as ‘‘strange’’. He regretted the years gone by when we had the Bellos, the Kayode Eshos, and the Aniagolus etc and concluded that the judgment has taken Nigeria back, perhaps a thousand years.
Also, the intelligent but sometimes acerbic Sam Omatseye, The Nation columnist in his column, In Touch said the judgment was ‘‘perverse to say the least’’. According to him ‘‘ it was not about justice, it was about imagination farting foul, about viewpoints of the judges, a febrile, tendentious sense of reality, a decision that upsets the equipoise of a civilized society’’. (The Nation Monday February 15, 2016). Not yet done, he stated that ‘‘this is the most perverse verdict from the top of the Nigerian bench’’.
There are numerous comments, attacks and vituperations against the Supreme Court, but time and space will not permit their further reproduction. But let’s take the supposed arguments against the Supreme Court.
The first argument is that the Supreme Court should have imported the card reader into the Electoral Act of 2010 (as amended) and that in coming to a decision that the card reader is alien to the Electoral Act, the learned Justices took the path of least
resistance. This view is preposterous and unfounded in law, logic or reason. The Electoral Act 2010 (as amended) sets out grounds for an election petition under section 138, including corrupt practices and substantial non-compliance. I have gone through the Electoral Act numerous times and nowhere was the card reader mentioned. As clearly and correctly held by the Supreme Court, the card reader is a stranger to the Electoral Act. Accreditation of voters for an election is through voters register. The card reader is not and cannot transmute to voters register. At best, the card reader can help voters for purposes of identification but not to replace voters register.
There is no doubt that those who introduced the card reader meant well. Even at that, it largely malfunctioned in several places leading to disenfranchisement of voters. It seems to me that if the card reader will continue to be part of our election process, the National Assembly must urgently amend the Electoral Act and make the use ( or non- use) of card reader a ground for challenging an election. In similar vein, the INEC Guidelines as rightly held by the Supreme Court does not constitute a law. It is not peremptory or mandatory. It does not constitute positive law within the contemplation of the Austinian School of jurisprudence. As such, it is lacking in sanction and non-compliance with a mere guideline has never been a ground for an election petition.
The second argument is that the Supreme Court hid under the cloak of technicality in coming to its decision. They argued that the Supreme Court was wrong in questioning the composition of the tribunal as it relates to Rivers State. This charge against the Supreme Court is intended to mislead the public especially as it relates to such basis and rudimentary aspects of our law. The basic principle is that if a matter or case is before a judge or panel of judges and one of them is removed or transferred and that matter or case is part-heard, it must be started ‘‘denovu’’, i.e. afresh. The reason is commonsensical and simple. How can a man who is absent deliver a ruling on a matter he did not hear.
The third grouse of the Sagays, Omatseyes, and their ilk is that there was over-voting and the Supreme Court ought to hold that the case was proven. The fundamental requirement of proof in law does not lie within the realm of imagination or beer parlour discussion. Not even in buses and motor parts are cases proved. They are, indeed, proven in the Law Court according to the rule of Law and by introduction of evidence. The Supreme Court, rightly held, following our Law of evidence and procedure that every allegation of over-voting must be proved booth by booth and polling unit by polling unit. The petitioner who relies on over-voting must lead evidence in that direction. This requirement is not only legal, it is also reasonable. For instance, does it make sense that a petitioner who alleges over-voting in a Local Government with two hundred polling units but leads evidence only in three polling units will now require that the Supreme Court must assume that there was over-voting in the remaining one hundred and ninety seven booths. Perhaps, the Supreme Court is expected to know by metaphysical or clairvoyant means that over-voting also took place in those other places. The law is trite that upon a claim in civil suit which borders on crime, the requirement of proof is ‘beyond reasonable doubt’. So, why should we all now crucify the learned Justices of the Supreme Court for applying and upholding our rudimentary law of evidence and procedure.
Finally, insinuations and innuendos are being made about the now glorious past of the Supreme Court as if the present Court is less deserving. Nothing can be farther from the truth. Without prejudice to the past, and with every sense of humility and responsibility, I make bold to say that glorious days have never departed from the Supreme Court. If for nothing, the present Supreme Court will go down as the golden age of the apex Court because of men and women of impeccable integrity, and unquestionable character that sit on that Court. Just one example will do. Justice Centus Chima Nweze, Ph.D, sits on that Court.
A former Judge of the High Court, a former judge of the Court of Appeal, a former Professor of Law of the University of Nigeria, an accomplished author whose seminal work on Law of Evidence is like a Bible in all Law faculties in Nigeria and a man who has published over two hundred papers locally and internationally. Same can be said for each and every member of that Court. How golden can we get?
The irony of this country is that people sit in the comfort of their homes and write judgments in matters before the Court. Our people also love spectator judgments as if these were football match. Even at that, the spectators can shout but only the team that scores wins the marches. We must be careful not to destroy our future by destroying our today. The critics of the Supreme Court would have been singing a different tune if judgment had gone their side. It is time to give honour to whom it is due and to respect the very best in our land.
•Ortuanya is a Professor of Law and Head of Dept. of private Law Enugu State University of Science and Technology (ESUT) [email protected]